1. ACCEPTANCE OF TERMS
The right to use Speed Marketing® is personal to User and any Permitted Password User is not transferable to any other person or entity. User and Permitted Password User are responsible for all use of User's or Permitted Password User’s Account (under any screen name or password) and for ensuring that all use of User's or Permitted Password User’s Account complies fully with the provisions of this Agreement and Ancillary Agreements. User and Permitted Password User shall solely be responsible for protecting the confidentiality of User's and Permitted Password User’s password(s), if any.
Provider shall have the right at any time to change or discontinue any aspect or feature of Speed Marketing®, including, but not limited to, content, hours of availability, and equipment needed for access or use. Any misuse of the Speed Marketing® or violation of any agreement with Provider will result in the immediate termination of User’s or Permitted Password User’s right to access Speed Marketing®.
For purposes of this Agreement, “User” shall refer to the Company contracting with Speed Marketing®. Permitted Password User shall refer to any party allowed to use Speed Marketing®, as well as any anyone or any entity using Speed Marketing® without proper authorization.
Provider shall retain all right and title to Speed Marketing®, and any use of Speed Marketing® or modification thereof, will not confer any right, title or interest in or to Speed Marketing®. The use granted herein is deemed, for all intents and purposes, a non-exclusive, non-transferable, limited license to use Speed Marketing® within the United States.
Any software created for the use of User or Permitted Password User to utilize any aspect of Speed Marketing® shall not be considered work for hire and shall remain the sole property of Provider. User and Permitted Password User shall be granted a non-exclusive, non-transferable, limited license to use the product created.
User shall be responsible for obtaining and maintaining all telephone, computer hardware, software and other equipment needed for access to and use of Speed Marketing®. Provider is not responsible for any damage to or malfunction caused by any employee or agent of Provider or the use of Speed Marketing® and any software provided by a third party provider.
3. USER AND PERMITTED PASSWORD USER CONDUCT
A. User and Permitted Password User shall use Speed Marketing® for lawful purposes only. User and Permitted Password User shall not post or transmit through Speed Marketing® any material which violates or infringes in any way upon the rights of others, or which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, gives rise to civil liability or otherwise violates any law.
B. Speed Marketing® contains copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music and sound, and the entire contents of Speed Marketing® are copyrighted as a collective work under the United States copyright laws and patented under patent numbers US 7,268,896 B2; US 7,716,735 B2; US 7,554,681 B2, US 7,814,560 B2 and US 8,928,932 B2. Provider owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. User and Permitted Password User may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part without Provider’s express written approval. User and Permitted Password User may download copyrighted material for User's or Permitted Password User’s use only as contemplated under the Speed Marketing® Agreement entered into between User and Provider. Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without the express written permission of Provider. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. User and Permitted Password User acknowledge that they do not acquire any ownership rights by downloading copyrighted material or in any software or templates created for their use and all shall remain the exclusive property of Provider or the designated authorized third party.
C. User and Permitted Password User shall not upload, post or otherwise make available on Speed Marketing® any material protected by copyright, trademark or other proprietary right without the express written permission of the owner of the copyright, trademark or other proprietary right and the burden of determining that any material is not protected by copyright rests with User and Permitted Password User. User and Permitted Password User shall be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from such a submission. By submitting material to any public area of Speed Marketing®, User and Permitted Password User automatically grants, or warrants that the owner of such material has expressly granted Provider the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such material. User and Permitted Password User also permit any other user to access, view, store or reproduce the material for that User or Permitted Password User’s purposes. User and Permitted Password User hereby grant Provider the right to edit, copy, publish and distribute any material made available on Speed Marketing® by User or Permitted Password User and agree to fully indemnify Provider from any liability incurred thereby without limitation.
D. The foregoing provisions are for the benefit of Provider, its subsidiaries, affiliates, employees, agents and its third party content providers and licensors and each shall have the right to assert and enforce such provisions directly and on its own behalf. All liabilities and obligations of User and Permitted Password User are joint and several.
4. USE OF COMMUNICATION SERVICES
Speed Marketing® may contain document libraries, image libraries, publication libraries, administration libraries, email services, bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, photo albums, file cabinets and/or other message or communication facilities designed to enable User and Permitted Password User to communicate with others (each a "Communication Service" and collectively "Communication Services"). User and Permitted Password User agree to use the Communication Services only to post, send and receive messages and material that are proper and, when applicable, related to the particular Communication Service. By way of example, and not as a limitation, User and Permitted Password User agree that when using the Communication Services, User and Permitted Password User will not:
§ Use the Communication Services in connection with unlawful contests, pyramid schemes, chain letters, junk email, spamming or any duplicative or unsolicited messages (commercial or otherwise).
§ Defame abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
§ Publish post, upload, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information.
§ Upload, or otherwise make available, files that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless User or Permitted Password User owns or controls the rights thereto or has received all necessary consent to do the same.
§ Use any material or information, including images or photographs, which are made available through the Services in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party.
§ Upload files that contain viruses, spyware, Trojan horses, worms, time bombs, cancel bots, corrupted files, or any other similar software or programs that may damage the operation of another's computer or property of another.
§ Advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Services and applicable law specifically allow such messages.
§ Download any file posted by another user of a Communication Service that User or Permitted Password User knows, or reasonably should know, cannot be legally reproduced, displayed, performed, and/or distributed in such manner.
§ Falsify or delete any copyright management information, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.
§ Violate any code of conduct or other guidelines which may be applicable for any particular Communication Service.
§ Violate any applicable laws or regulations.
§ Create a false identity for the purpose of misleading others.
§ Use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity any directory of users of the Services or other user or usage information or any portion thereof for personal gain.
Provider has no obligation to monitor the Communication Services. However, Provider reserves the right to review materials posted to the Communication Services and to remove any materials without notice. In its sole discretion, Provider reserves the right to terminate User’s or Permitted Password User access to any or all of the Communication Services at any time, without notice, for any reason whatsoever. Provider reserves the right at all times to disclose any information as it deems necessary to satisfy any applicable law, regulation, legal process or governmental request; provided that notice is given to User or Permitted Password User unless otherwise prohibited, or to edit, refuse to post or to remove any information or materials, in whole or in part, if Provider, in its sole discretion, deems said information or materials to be in violation of the terms of this Agreement or an Ancillary Agreement.
Materials uploaded to the Communication Services may be subject to posted limitations on usage, reproduction and/or dissemination. User and Permitted Password User are responsible for adhering to such limitations if User or Permitted Password User downloads the materials. Any private, protected or personally identifiable information posted in any Communication Service is at the User’s or Permitted Password User’s sole risk.
Provider does not control or endorse the content, messages or information found in any Communication Service and, therefore, Provider specifically disclaims any liability with regard to the Communication Services and any actions resulting from User’s or Permitted Password User’s participation in any Communication Services. Managers and hosts are not authorized Provider spokespersons, and their views do not necessarily reflect those of the Provider.
5. USER ACCOUNT, PASSWORD, AND SECURITY
If any of the Communication Services requires User or Permitted Password User to open an account, User or Permitted Password User must complete the registration process by providing Provider with current, complete and accurate information as prompted by the applicable registration form. User and Permitted Password User is entirely responsible for maintaining the confidentiality of User’s and Permitted Password User’s password and account and any and all activities that occur under User’s or Permitted Password User’s account. User and Permitted Password User agree to notify Provider immediately of any unauthorized use of User’s or Permitted Password User’s account or any other breach of security. Provider will not be liable for any loss that User or Permitted Password User may incur as a result of someone else using User’s or Permitted Password User password or account, either with or without User’s or Permitted Password User’s knowledge. However, User and Permitted Password User will be held liable for losses or damages, incurred by Provider or another party due to someone else using User’s or Permitted Password User’s account or password. User or Permitted Password User may not use anyone else's account at any time, without the permission of the account holder.
6. NOTICE SPECIFIC TO SOFTWARE AVAILABLE ON THIS WEBSITE
Any software that is made available from the Communication Services ("Software") is the copyrighted work of Provider and/or its suppliers or affiliates or third party licensors. Use of the Software is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software ("License Agreement").
7. NOTICE SPECIFIC TO DOCUMENTS AVAILABLE ON THIS WEBSITE
Any use of any documentation or images from the Communication Services must contain the following:
BELL LITHO, INC. AND/OR ITS RESPECTIVE SUPPLIERS, THIRD PARTY PROVIDERS OR AFFILIATES MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION OR IMAGE CONTAINED IN THE DOCUMENTS AND RELATED GRAPHICS PUBLISHED AS PART OF THE COMMUNICATION SERVICES FOR ANY PURPOSE. ALL SUCH DOCUMENTS AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITH FAULT, WITHOUT WARRANTY OF ANY KIND. BELL LITHO, INC. AND/OR ITS RESPECTIVE SUPPLIERS, THIRD PARTY PROVIDERS OR AFFILIATES HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. IN NO EVENT SHALL BELL LITHO, INC. AND/OR ITS RESPECTIVE SUPPLIERS, THIRD PARTY PROVIDERS OR AFFILIATES BE LIABLE FOR ANY DAMAGES HOWSOEVER ARISING, INCLUDING BUT NOT LIMITED TO, ACTUAL, SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF INFORMATION AVAILABLE FROM THE SPEED MARKETING® COMMUNICATION SERVICES OR VIOLATION OF ANY USER OR PERMITTED PASSWORD USER OF SERVICES.
THE DOCUMENTS AND RELATED GRAPHICS PUBLISHED ON THE SPEED MARKETING® COMMUNICATION SERVICES COULD INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. PROVIDER AND/OR ITS RESPECTIVE AFFILIATES, THIRD PARTY PROVIDERS OR SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE PRODUCT(S) AND/OR THE PROGRAM(S) DESCRIBED HEREIN AT ANY TIME.
IN NO EVENT WILL BELL LITHO, INC’S LIABILITY (INCLUDING THAT OF ITS AFFILIATES, EMPLOYEES, AGENTS, SUPPLIERS OR THIRD PARTY PROVIDERS) ARISING OUT OF OR RELATED TO THE FOREGOING USE EXCEED $25,000 EVEN IF THE FOREGOING LIMITATION AND EXCLUSION ARE NOT ALLOWED TO THE FULLEST EXTENT IN ANY APPLICABLE JURISDICTION.
8. MATERIALS PROVIDED TO SPEED MARKETING®, OR POSTED AT ANY OF ITS WEBSITES
Provider does not claim ownership of the materials User or Permitted Password User provides to Provider (including feedback and suggestions) or post, upload, input or submit to any Communication Services or its associated services for review by the general public, or by the members of any public or private community, (each a "Submission" and collectively "Submissions"). However, by posting, uploading, inputting, providing or submitting ("Posting") User’s or Permitted Password User’s Submission, User or Permitted Password User is granting Provider, its affiliated companies and necessary sub-licensees permission to use User’s or Permitted Password User’s Submission in connection with the operation of their Internet and printing businesses (including, without limitation, all Speed Marketing® Communication Services), including, without limitation, the license rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat User’s or Permitted Password User’s Submission; to publish User’s or Permitted Password User’s name in connection with User’s or Permitted Password User’s Submission; and the right to sublicense such rights to any supplier of the Communication Services. No compensation will be paid with respect to the use of User’s or Permitted Password User’s Submission, as provided herein. Provider is under no obligation to post or use any Submission User or Permitted Password User may provide and Provider may remove any Submission at any time in its sole discretion. By posting a Submission, User or Permitted Password User warrants and represents to own or otherwise control all of the rights to User’s or Permitted Password User’s Submission as described in these TOU including, without limitation, all the rights necessary for User or Permitted Password User to provide, post, upload, input or submit the Submissions.
9. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY
USER AND PERMITTED PASSWORD USER EXPRESSLY ACKNOWLEDGES THAT SPEED MARKETING® IS A NEW AND INNOVATIVE TECHNOLOGY. USER AND PERMITTED PASSWORD USER EXPRESSLY ACKNOWLEDGE THAT THEIR USE OF SPEED MARKETING® IS AT THEIR SOLE RISK AND NEITHER THE PROVIDER NOR ANY OF ITS AFFILIATES, EMPLOYEES OR AGENTS OR THIRD PARTY LICENSORS WARRANT THAT THE USE OF SPEED MARKETING® WILL BE UNINTERRUPTED OR ERROR FREE, NOR DO THEY MAKE ANY WARRANTY OR REPRESENTATION AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF SPEED MARKETING® OR ITS ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH SPEED MARKETING®.
SPEED MARKETING® IS BEING PROVIDED ON AN “AS IS” BASIS WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, COURSE OF DEALING, COURSE OR PERFORMANCE OR SATISFACTORY QUALITY. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION OF SERVICE, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OF ANY KIND OR NATURE, SPYWARE OF ANY KIND OR NATURE, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF MATERIAL, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. USER AND PERMITTED PASSWORD USER SPECIFICALLY ACKNOWLEDGES THAT PROVIDER IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USERS, PERMITTED PASSWORD USERS OR THIRD PARTIES AND THAT THE RISK OF DAMAGE OR INJURY FROM THE FOREGOING RESTS ENTIRELY WITH THE USER AND PERMITTED PASSWORD USER.
IN NO EVENT WILL PROVIDER, ITS AFFILIATES, EMPLOYEES, AGENTS OR THIRD PARTY LICENSORS, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING SPEED MARKETING® OR ANY SOFTWARE NECESSARY FOR ITS UTILIZATION BE LIABLE FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST SAVINGS, LOST DATA, THIRD PARTY CLAIMS, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF, OR IN ANY WAY CONNECTED TO, THE USE OF OR INABILITY TO USE SPEED MARKETING®, ANY COMPUTER SOFTWARE OR PROGRAMMING CONNECTED WITH ITS USE, USE OR INABILITY TO USE ANY CONTENT ON ITS SITE OR ANY THIRD PARTY SITE, ANY CONTENT ON ANY SITE WHETHER OR NOT CREATED BY SPEED MARKETING®. THIS DISCLAIMER SHALL IN NO EVENT BE DEEMED LIMITED IN ANY MANNER AND IS DEEMED TO INCLUDE ALL LIABILITY WHETHER OR NOT EXPRESSLY STATED HEREIN.
IN NO EVENT WILL PROVIDER’S LIABILITY (INCLUDING THAT OF ITS AFFILIATES, EMPLOYEES, AGENTS, SUPPLIERS OR THIRD PARTY PROVIDERS) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ANCILLARY AGREEMENT EXCEED $25,000 EVEN IF THE FOREGOING LIMITATION AND EXCLUSION ARE NOT ALLOWED TO THE FULLEST EXTENT IN ANY APPLICABLE JURISDICTION; AND IN NO EVENT WILL PROVIDER, ITS AFFILIATES, EMPLOYEES, AGENTS, SUPPLIERS OR THIRD PARTY PROVIDERS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST DATA, OR LOST SAVINGS. THE LIABILITIES LIMITED BY THIS SECTION SHALL APPLY (A) TO ANY AND ALL LIABILITIES HEREUNDER, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR MALFEASANCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (C) EVEN IF PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF USER’S AND PERMITTED PASSWORD USER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION, PROVIDER’S AND ITS AFFILIATES, EMPLOYEES, AGENTS AND SUPPLIERS AND THIRD PARTY PROVIDERS’ LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE THEREUNDER.
10. LINKS TO THIRD PARTY SITES
THE LINKS IN THIS AREA WILL LET USER AND PERMITTED PASSWORD USERS LEAVE THE SPEED MARKETING® SITE. THE LINKED SITES ARE NOT UNDER THE CONTROL OF PROVIDER AND SPEED MARKETING® IS NOT RESPONSIBLE FOR THE CONTENTS OF ANY LINKED SITE OR ANY LINK CONTAINED IN A LINKED SITE, OR ANY CHANGES OR UPDATES TO SUCH SITES OR ANY VIRUSES, SPYWARE OR COOKIES CONTAINED IN SAID SITE. PROVIDER IS NOT RESPONSIBLE FOR WEBCASTING OR ANY OTHER FORM OF TRANSMISSION RECEIVED FROM ANY LINKED SITE. PROVIDER THROUGH SPEED MARKETING® IS PROVIDING THESE LINKS TO USER AND PERMITTED PASSWORD USER ONLY AS A CONVENIENCE, AND THE INCLUSION OF ANY LINK DOES NOT IMPLY ENDORSEMENT BY PROVIDER OF THE SITE.
Provider is a distributor (and not a publisher) of content supplied by third parties, Users and Permitted Password Users and has no control over the editorial content. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers, Users, Permitted Password Users, or any other user of Speed Marketing® are those of the respective author(s) or third party distributor(s) and not Provider. Neither Provider nor any third-party provider of information guarantees the accuracy, completeness, or usefulness of any content, nor its merchantability or fitness for any particular purpose or that the User or the Permitted Password User has the right to use the content without violating copyright, patent or other applicable laws.
11. UNSOLICITED IDEA SUBMISSION POLICY
NEITHER PROVIDER NOR ANY OF ITS EMPLOYEES OR AFFILIATES ACCEPT OR CONSIDER UNSOLICITED IDEAS, INCLUDING IDEAS FOR NEW ADVERTISING CAMPAIGNS, NEW PROMOTIONS, NEW PRODUCTS OR TECHNOLOGIES, PROCESSES, MATERIALS, MARKETING PLANS OR NEW PRODUCT NAMES. PLEASE DO NOT SEND ANY ORIGINAL CREATIVE ARTWORK, SAMPLES, DEMOS, OR OTHER WORKS. THE SOLE PURPOSE OF THIS POLICY IS TO AVOID POTENTIAL MISUNDERSTANDINGS OR DISPUTES WHEN PROVIDER’S PRODUCTS OR MARKETING STRATEGIES MIGHT SEEM SIMILAR TO IDEAS SUBMITTED TO PROVIDER. PROVIDER WILL NOT GUARANTEE THAT THE INFORMATION WILL BE RETURNED OR THAT YOUR IDEAS OR MATERIALS WILL BE TREATED AS CONFIDENTIAL OR PROPRIETARY.
Provider shall have the right, but not the obligation, to monitor the content of Speed Marketing®, including chat rooms and forums, to determine compliance with this Agreement and any operating rules established by Provider, and to satisfy any law, regulation or authorized government request. Provider shall have the right, in its sole discretion, to edit, refuse to post or remove any material submitted to or posted on Speed Marketing®. Without limiting the foregoing, Provider shall have the right to remove any material that Provider, in its sole discretion, finds to be in violation of the provisions hereof or otherwise objectionable.
User and Permitted Password User shall indemnify, defend and hold harmless Provider from and against, and in respect to, any and all claims, actions, demands, losses, costs, expenses, obligations, liabilities, damages whether direct or indirect, recoveries, trademark or patent infringements, breach of privacy claims, deficiencies, and penalties, including reasonable attorneys’ fees, court costs and arbitration costs, of whatsoever kind or nature, that Provider shall incur or suffer, which arise out of, result from or relate to any breach of, or violation of the Agreement and any and all Ancillary Agreements or any third party claims for damages arising out of the direct or indirect use, or failure to operate, of SPEED MARKETING®. Provider shall have the option of defending itself and with its own counsel and User and Permitted Password User shall be liable for any and all fees, costs and expenses attributable to said defense, in addition to the foregoing damages. User and Permitted Password User agree to notify Provider of any suit or claim or potential suit or claim within two (2) business days of receipt of or notice of same.
14. TERMINATION BY USER
User may terminate this Agreement:
a) By giving Provider a written notice at any time and will be liable for all work fees incurred prior to receipt of said notice. If User does not provide such a notice, it will be obliged to pay all fees for work done and for other charges incurred. All previously assessed fees and charges will be deemed earned in full; or
b) Provider breaches this Agreement or any Ancillary Agreement, obligation under this Agreement or Ancillary Agreement, and such breach remains uncured for a period of thirty (30) days after written notice thereof is sent to such other party; or
c) Provider ceases to conduct business or files for or has instituted against it any proceedings as to its bankruptcy, insolvency, reorganization, liquidation, receivership or dissolution or there is an assignment for the benefit of creditors
15. TERMINATION BY PROVIDER
Provider may terminate this Agreement upon the occurrence of any of the following:
(a) User or Permitted Password User breaches this Agreement or any Ancillary Agreement, obligation or warranty under this Agreement, and such breach remains uncured for a period of thirty (30) days after written notice thereof is sent to such other party; or
(b) User ceases to conduct business, or files for, or has instituted against it, any proceedings as to its bankruptcy, insolvency, reorganization, liquidation, receivership or dissolution or there is an assignment for the benefit of creditors; or
(c) Provider forms the opinion, on reasonable grounds, that mutual confidence and trust do not exist between both parties; or
(d) User fails to pay Provider in a timely fashion as provided in this Agreement.
A. Notices. Notices pursuant to this Agreement or any Ancillary Agreement will be sent to the addresses below, or to such others as either party may provide in writing. Such notices will be deemed received at such addresses upon the earlier of (i) actual receipt or (ii) delivery in person, by fax with written confirmation of receipt, or two days after mailing by certified mail return receipt requested.
B. For the Provider:
i. Bell Litho, Inc.
ii. 370 Crossen Ave.
iii. Elk Grove Village, IL 60007
iv. For User and Permitted Password Users at the address provided in the Speed Marketing® Agreement signed by User
C. No Waiver. Provider will not be deemed to have waived any of its rights under this Agreement or any Ancillary Agreement by lapse of time or by any statement or representation other than (a) by an authorized representative, and (b) in an explicit written waiver. No waiver of a breach of this Agreement or Ancillary Agreement by Provider will constitute a waiver of any prior or subsequent breach of this Agreement or Ancillary Agreement.
D. Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
E. Assignment and Successors. User shall not assign its rights to any successor without the prior written approval of Provider. This Agreement and all Ancillary Agreements will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
F. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement or Ancillary Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement or Ancillary Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement and Ancillary Agreements will continue in full force and effect.
G. Conflicts among Attachments. In the event of any conflict between the terms of this Agreement and those of any attachment or Ancillary Agreement, the Speed Marketing® Agreement will govern.
H. Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.
I. Construction. The parties agree that the terms of this Agreement or any Ancillary Agreement will not be construed against the party by reason of authorship.
J. Amendment. This Agreement may be modified at any time by Provider.
K. Entire Agreement. This Agreement and Ancillary Agreements constitute the entire agreement between the parties. No other agreements, representations, warranties or other matters, oral or written purportedly agreed to or presented by or on behalf of Provider by any of its employees or agents, or contained in any sales materials or brochures, shall be deemed to bind the parties hereto with respect to the subject matter hereof. User acknowledges that it is entering into this Agreement and the Ancillary Agreements solely on the basis of the representations contained herein.
M. Attorney Fees. Should either party hereto, or any heir, personal representative, successor or assign of either party hereto, resort to litigation or arbitration to enforce this Agreement, or any Ancillary Agreements, User or Permitted Password User agrees to pay all of Providers attorneys’ fees and costs, including arbitration and court costs, regardless of whether the Provider shall prevail.
N. Injunctive Relief. The parties hereto agree that, in the event of breach or threatened breach of this Agreement or any Ancillary Agreements, the damage or imminent damage to the value and the goodwill of the Provider’s business will be inestimable, and that therefore any remedy at law or in damages shall be inadequate. Accordingly, the parties hereto agree that the Provider shall be entitled to injunctive relief against User or Permitted Password User in the event of any breach or threatened breach by User or Permitted Password User, in addition to any other relief (including damages) available to the Provider under this Agreement, any Ancillary Agreement, or under law. Said remedy shall be in addition to any other remedies provided in arbitration.
17. REQUEST FOR FEE DETAILS & REMAINING WORK ESTIMATE
Upon request of User, Provider will provide a detailed accounting of the work completed to date, all fees and costs incurred to date, as well as an estimate of the work, fees and costs to complete the matter.
18. GOVERNING LAW AND VENUE
This Agreement shall be governed by, enforced and construed under the laws of the State of Illinois without regard to any provisions relative to conflicts of law of the State of Illinois. The venue for all litigation pertaining to this Agreement and any Ancillary Agreement shall be Cook County, Illinois. Provider shall be reimbursed for attorneys’ fees, costs and other expenses pertaining to said litigation or arbitration and said attorneys’ fees, costs and other expenses shall become a part of any judgment or decree from any court or arbitration hearing.
ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, INCLUDING, WITHOUT LIMITATION, CLAIMS RELATED TO THE USE OF SPEED MARKETING®, WILL BE SUBMITTED TO MANDATORY, BINDING ARBITRATION UNDER THE AUSPICES OF THE AMERICAN ARBITRATION ASSOCIATION (“ABA”), INI CHICAGO METROPOLITAN AREA IN ILLINOIS, WITH USER OR PERMISSIBLE PASSWORD USER TO PAY ALL FEES AND COSTS OF ARBITRATION INCURRED BY BOTH PARTIES. THIS SECTION DOES NOT LIMIT THE RIGHT OF PROVIDER TO PURSUE TEMPORARY OR PERMANENT INJUNCTIVE RELIEF OR ANCILLARY REMEDIES FROM A COURT OF COMPETENT JURISDICTION BEFORE, AFTER OR DURING THE PENDENCY OF ANY ARBITRAATION, AND THE EXERCISE OF ANY SUCH REMEDY DOES NOT WAIVE PROVIDER’S RIGHT TO ARBITRATION. JUDGMENT ON AN ARBITRATION AWARD MAY BE ENTERED BY ANY COURT WITH COMPETENT JURISDICTION.